Last updated 09/07/24: Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website: https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 25 September 2015
Milner Ball's essay, and all of his work, ring with hope; that is, both with his clear-sighted, scholar's interest in finding and telling the truth, and with the optimism that comes of his belief that chaos has been overcome. His thought is an inspiration; and his lyrical prose is, for all of its somber truth, a joy to read.
In the spirit he brings to his work, I suggest that the Hebraic religious tradition contains a richer theological basis for the claim that law is a medium (or, perhaps more modestly, a conversation) than he seems to allow for; and I suggest that there is perhaps more hope to be found in human relationships in a lawyer's professional life than there is in the institutional forms provided by the government—more in the law office than in the administrative apparatus that Professor Ball prefers to invoke for examples of medium.
With those suggestions out of the way, I want to argue that Professor Ball's characterization of property ownership as “the apparatus of bulwark law” is premature. I want to suggest that the bulwark-like difficulties in property law are less the essence of ownership than a perversion of ownership.
1. Hope is a theological virtue; it is in continuity with the philosophical (moral) virtues of justice, prudence, temperance, and courage, but it reaches into a different territory when it affirms that it is realistic in this world both to tell the truth and to be optimistic. Professor Ball's treatment of the issue of chaos is a precise instance of it. Meilaender, G., The Theory and Practice of Virtue 27–44 (1984)Google Scholar; Shaffer, T., On Being a Christian and a Lawyer ch. 19 (1981), written with Stanley HauerwasGoogle Scholar.
2. See Shaffer, , Jurisprudence in Light of the Hebraic Faith, 1 Notre Dame J.L. Pub. Pol'y 77 (1984)Google Scholar.
3. Brown, & Shaffer, , Toward a Jurisprudence for the Law Office. 17 Am. J. Juris. 125, 148 n.456 (1972)CrossRefGoogle Scholar. Professor Brown's model shows how the simplest two-sided legal situation involves six human relationships.
Dr. Robert S. Redmount developed implications for this model in Brown, , Attorney Personalities and Some Psychological Aspects of Legal Consultation, 109 U. Pa. L. Rev. 972 (1961)Google Scholar.
4. Prettyman, , The Nature of Administrative Law, 44 Va. L. Rev. 685, 698 (1958)CrossRefGoogle Scholar.
5. Shaffer, T., The Planning and Drafting of Wills and Trusts 18–26 (2d ed. 1979)Google Scholar. My friend and colleague Professor Lewis H. LaRue, who is a lover of language, points out that the word “property” derives from the Indo-European word “per,” a preposition or adverb meaning forward or through, with extended uses in English words such as veer, paradise, forth, further, foremost, from, furnish, approach, proximate, presbyter, priest, and praise. The verb form generaly connotes leading or passing over—in such words as firth, fjord, wayfaring, ferry, portal, portage, parade, and parachute. In its compounded form: poor, pauper, foal, and even puerile.
6. Frost, R., The Complete Poems of Robert Frost 49 (1949)Google Scholar.
7. On the Condition of Labor, Rerum Novrum, in Five Great Encyclicals 1, 4-6, 22–23 (Harney, J. ed. 1940)Google Scholar.
8. Frost, R., The Compete Poems of Robert Frost 47 (1949)Google Scholar.
9. Id.
10. See also Barth, K., Ethics 191–96 (Bromiley, G. trans. 1981)Google Scholar.
11. Deutsch, , The Effect of Motivational Orientation Upon Trust and Suspicion, 13 Hum. Rel. 123 (1960)CrossRefGoogle Scholar.
12. Tinder, G., Tolerance (1975)Google Scholar.
13. Frost, supra note 8, at 47.
14. For examples, see Williams, O. F. & Houck, J., Full Value: Cases in Business Ethics (1978)Google Scholar.
15. Brown & Shaffer, supra note 3; Jones, , Lawyers and Justice: The Uneasy Ethics of Partisanship, 23 Vill. L. Rev. 957 (1978)Google Scholar.
16. Professor Ball and I participated in April 1984 in a colloquium with Professor Robert Burt that centered on a similar point about political and local processes as encouraged by the federal courts; it is possible at least by way of analogue to compare processes imposed by institutions with processes that occur (naturally?) among people. Professor Burt's essay and the other colloquium papers, including Professor Ball's, are at 42 Wash. & Lee L. Rev. 27, 37 (1985)Google Scholar. An earlier and also related colloquium Tensions Between Religious or Ethnic Communities and the Larger Society, led by ProfessorTurnbull, Colin M., begins at 41 Wash. & Lee L. Rev. 31 (1984)Google Scholar.
